Early American Voting Demographics (responding to Professor Rakove respon...

Sean Wilson whoooo26505 at yahoo.com
Fri Aug 24 15:28:44 PDT 2007

.. one wonders how one can have an original meaning of a text that is offered by its framers as a  sacrament to the metaphysics of natural law. I mean, can you have a textual (positivistic) understanding of something that is created in a natural-law world? That's like asking, "What is the original understanding of the English constitution?" --  which is nothing other than saying what is fundamental political hegemony in the culture at the time people began speaking in this vernacular.
Look at all that Jefferson thought about the constitution  -- e.g., that it gave the House the final say over Treaties because of the natural supremacy of that chamber. That seems more to me an original understanding of factious revolutionary political psychology rather than the anthropology of semantics.  Here is the basic point: colonial legal psychology in the decade that followed independence did not presume that fundamental law resided in either: (a) the static condition of naked words and phases as understood by revolutionary semantic culture; or (b) the popular policy expectations of colonial people. This was a post-aristocratic, pre-democratic society that was still drooling in natural law. So any attempt to talk about "original understandings" sure as heck better adopt the metaphysics that it was based upon.
 It is nothing other than sophistry to take word-centric juristic notions from the positivistic era in which we now live and force it upon the American psychology that was the first to experiment in the codification of fundamental law.

Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/

----- Original Message ----
From: Kurt Lash <Kurt.Lash at lls.edu>
To: Paul Finkelman <pfink at albanylaw.edu>
Cc: conlawprof at lists.ucla.edu
Sent: Friday, August 24, 2007 5:41:06 PM
Subject: Re: Early American Voting Demographics (responding to Professor Rakove respon...

Paul Finkelman  wrote "Madison considered the BoR unnecessary and adding very little to the Constitution . . ."  
Yes, meaning that the Bill was generally considered declaratory of the Constitution's (proper) original meaning.  Thus, the relevance of the debates regarding the Bill of Rights.
Paul also wrote, "None of the states ratified the Constitution did so on condition that
there be a bill of rights."  True, but that's not what I wrote.  Adding a Bill of rights was considered by many as essential to supporting the proposed constitution.  I believe that Edmund Randolph in Va., for example, was quite clear about this.
But I do not think it's altogether clear, even as a formal matter, that no state ratified "conditionally."  New York, for example, submitted along with its notice of ratification a declaration detailing the convention's assumed "proper meaning" of the Constitution, along with proposed amendments ("Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration,--We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.").
If that's not contingent ratification, it's darned close.
Kurt Lash
Loyola Law School, Los Angeles
 ----- Original Message -----
From: Paul Finkelman <pfink at albanylaw.edu>
Date: Friday, August 24, 2007 2:15 pm
Subject: Re: Early American Voting Demographics (responding to Professor Rakove respon...
To: Kurt.Lash at lls.edu, rakove at stanford.edu
Cc: RJLipkin at aol.com, conlawprof at lists.ucla.edu

> the ratifying states considered their adoption essential to
supporting the proposed constitution,?  At best you get some 
> compromises in the
> close states -- like Va. -- where the Federalists agree to allow the
> losers to propose amendments, but only after ratification.  The
> federalists opposed any tying of amendments to ratification and 
> that was
> clear in all of the conventions (except NC and RI which ratified after
> Amendments were proposed in Congress).  Madison considered 
> the BoR
> unnecessary and adding very little to the Constitution; the true
> antifederalists considered it a "tub to the whale" that did not answer
> their objects; indeed, in Va. the *antifederalists* like Patrick Henry
> opposed the BoR because they wanted different Amendments that 
> would have
> undermined the whole structure of the Constitution.  It is 
> worth reading
> Ken Bowling's important article in the Journal of the Early Republic
> from the 1980s, "A Tub to the Whale."  Also on this topic, 
> modestly, my
> own article: "James Madison and the Adoption of the Bill of 
> Rights:  A
> Reluctant Paternity,"  1990 SUP. CT. REV. 301-47 (1991).
> Paul Finkelman
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
> 518-445-3386 
> pfink at albanylaw.edu
> >>> Kurt Lash <Kurt.Lash at lls.edu> 08/24/07 5:06 PM >>>
> Given that the Bill of Rights were considered declaratory, and 
> that many
> of the ratifying states considered their adoption essential to
> supporting the proposed constitution, it seems then that the 
> period of
> "relevant debate re original understanding" ought to extend up 
> to the
> ratification of the Bill of Rights in 1791.
> Kurt Lash
> Loyola Law School, Los Angeles

Boardwalk for $500? In 2007? Ha! Play Monopoly Here and Now (it's updated for today's economy) at Yahoo! Games.
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